¶1(specially concurring).
¶2{44} Although the law weighs in favor of affirming Joel’s sentence, I have substantial concerns regarding a system that imposes long term, adult sentences on children without affording judges the tools necessary to make sound, informed decisions.
¶3{45} According to the record, the earliest Joel can expect to be considered for parole is after serving a sentence of forty-five years. For one so young, this is effectively a life sentence. One who goes into prison a teenager and comes out a man at the age of retirement has forfeited most of his life.
¶4{46} A sentence of ninety years, for acts committed while Joel was fourteen and fifteen years old, is likely one of the longest sentences ever imposed on one so young in the modern history of this state. See State v. Gonzales, 2001-NMCA-025, ¶5, 130 N.M. 341, 24 P.3d 776 (affirming twenty-two-year adult sentence where the defendant pleaded guilty to second degree murder, aggravated burglary, aggravated battery, and two counts of aggravated assault); In re Ernesto M., 1996-NMCA-039, ¶¶ 1-2, 121 N.M. 562, 915 P.2d 318 (Ct.App.1996) (affirming thirty year adult sentence for seventeen year old, who had raped, beaten, and kidnapped a convenience store clerk). And this was not even a murder case. If Joel had eventually killed his victim, perhaps to protect himself from prosecution for his other crimes, he could have received a life sentence as an adult, but would have become eligible for parole after a “mere” thirty years. Thus, although Joel commits crimes which, however gruesome, are less than first degree murder, he receives a sentence that is effectively fifty percent longer. See Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (stating that rape, although a serious crime, does not compare with the unjustified taking of a human life and is to be treated differently than murder in conducting a proportionality analysis).
¶5{47} The problem with this sentence lies not just with the number of years, but more importantly with the process that seemingly made this sentence inevitable. As I read the record below, it was as much the lack of sentencing alternatives, as the particular merits of Joel’s circumstances, that compelled this sentence. The Children’s court judge was put in a classic dilemma. If he wanted to afford Joel a reasonable chance to redeem himself, the judge had to put society at risk. If the judge sentenced Joel as a juvenile, Joel would go free at age twenty-one, regardless of whether or not he proved to be truly amenable to rehabilitation. If, on the other hand, the judge wanted to maximize the protection of society, the judge had to assume the worst — that Joel was not amenable to treatment and rehabilitation as a juvenile — and sentence him then, and forevermore, as an adult. Although, in a technical sense, the court could choose its sentence, the harsh reality of our flawed system made it a Hobson’s choice. The court essentially had no choice but to protect society at the expense of the child.
¶6{48} The judge was not insensitive to this dilemma. At the final sentencing hearing, the court characterized its role as that of “a judge searching for options.” Yet, he recognized the effective lack of any such options, thanks to the faulty amenability process. The judge emphasized the need for “a system that would allow us to experiment and protect the community at the same time,” a decision that the court “dearly wish[ed he] could make ... in this case.” Instead, the judge had “to make a prediction [now] ... as the only decision I’ll get a chance to make.” Forcing the judge to make that decision now meant that, in order to protect society, he had no choice but to sentence Joel as an adult and, in the court’s own words (concurring in defense counsel’s characterization), “throw away the child.” The court was brutally frank in its reasoning. The sentence was ninety years so that, even with the possibility of meritorious time reductions and parole eligibility, Joel will not leave prison until he is at an age when, biologically speaking, he will be too old a man to pose a serious threat of re-offending. The court regretfully concluded, “I take no joy at all in finding that [this] is the only option I have.”
¶7{49} I enthusiastically join that portion of the majority opinion that calls for improvements in the Children’s Code. Children’s court judges need more flexible tools in order to adequately address the unique problems presented by youthful offenders. Judges need the power to sentence juveniles conditionally, first as juveniles and later as adults, depending upon whether subsequent review indicates that adult sentencing is warranted. With conditional sentencing, courts could take advantage of the therapeutic and rehabilitative services that are uniquely available for juveniles, and would have the opportunity to observe how a child actually performs until turning twenty-one. When the juvenile became of age, the judge would have a record of performance upon which to base a more informed, predictive decision about the probability for success versus the risk to society. Conditional sentencing affords the juvenile one last opportunity for redemption, while retaining institutional control over the juvenile for the protection of society; this seems to be a win-win proposition.
¶8{50} New Mexico, unfortunately, does not have such a system in place. Instead, we ask the impossible of our Children’s court. We expect judges to make life-long, predictive decisions, without the possibility of later review, about the kind of adults these juveniles will turn out to be, twenty, thirty, and forty years into the future. We do not, however, equip our judges with adequate and timely information to make such decisions as informed as they could be.
¶9{51} We demand that judges determine, now, whether a child is “amenable to treatment or rehabilitation as a child in available facilities,” pursuant to NMSA 1978, Section 32A-2-20(B)(l) (1996). We do not, however, afford judges the opportunity to experiment, under controlled conditions, to see how a child actually responds to treatment. Thus, the amenability determination is fraught with risk and, as a practical matter, forces judges to err on the side of caution in making amenability decisions. A lot rides on the wisdom of these amenability decisions. In the interest of protecting society, judges have to assume the worst about a juvenile, which can translate into a lengthy adult sentence on the chance that a juvenile may re-offend. And let us not forget that, under the present system, sixteen-year-old boys, once they are deemed not “amenable” to rehabilitation in juvenile facilities, serve lengthy adult sentences in the company of full-grown and very dangerous men. See generally Martin Forst, Jeffrey Fagan & T. Scott Yivona, Youth in Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy, 40 Juv. & Fam. Ct. J. 1, 9 (1989) (stating that juveniles in adult prisons are particularly vulnerable to being made victims).
¶10{52} Thus, in my mind, the process that compelled this ninety-year sentence is what makes its severity in this case so suspect. Cf. Hicks v. Oklahoma, 447 U.S. 343, 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980) (holding that it violates due process of law for a convicted state prisoner to be sentenced under a mandatory punishment statute where, under state law, he was entitled to the benefit of a discretionary state sentencing statute); Willeford v. Estelle, 637 F.2d 271, 272 (5th Cir.1981) (remanding for post-conviction '•relief where defendant, under state law, should have been entitled to an exercise of discretion in sentencing by the trial judge, who had erroneously believed that he was statutorily bound to impose a sentence of life imprisonment). It is not that the punishment does not fit the crime in the abstract. It is that the punishment exceeds the crime in the particular context of compelling a judge to act out of fear; to impose upon a child the worst possible sentence, instead of a sentence based upon what the court felt the child truly deserved. “The inquiry focuses on whether a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal.” Rummel v. Estelle, 445 U.S. 263, 288, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (Powell, J., dissenting, joined by Brennan, Marshall, & Stevens, JJ.) (emphasis added).
¶11{53} Defendant’s status as a juvenile makes this flawed process all the more suspect in a constitutional sense. It is generally a tenet of constitutional law that children merit special consideration in assessing whether a punishment is cruel and usual under the Constitution. See, e.g., Thompson v. Oklahoma, 487 U.S. 815-16, 838, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (holding that it constitutes cruel and unusual punishment to sentence a fifteen-year-old to death, and stating that “less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult”). Youthfulness goes into assessing the overall culpability of a defendant, which, in turn, is a factor in evaluating the proportionality of a punishment vis a vis a particular crime committed by a particular youthful offender. See Eddings v. Oklahoma, 455 U.S. 104, 115 n. 11, 116, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (noting that the age of a minor is a “relevant mitigating factor of great weight” in death penalty cases, and noting that “adolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults ... [and] deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults” (internal quotation marks and citation omitted)). What might be proportional for an adult is not necessarily proportional for a child. See generally Wayne A. Logan, Proportionality and Pimishment: Imposing Life Without Parole on Juveniles, 33 Wake Forest L.Rev. 681, 723 (1998) (arguing that the age of a juvenile should serve as a trigger for a heightened proportionality analysis, taking into account the background and traits of a young offender in the determination of criminal culpability).
¶12{54} The Children’s Code, unlike adult sentencing codes, requires us first to consider whether the defendant is amenable to rehabilitation; this is because, constitutionally speaking, kids are different. “[0]ur courts are especially solicitous of the rights of juveniles.” State v. Hunter, 2001-NMCA-078, ¶ 12, 131 N.M. 76, 33 P.3d 296. The Children’s Code balances the needs of the child with the needs of society in ways that the adult criminal code and its courts do not. See NMSA 1978, § 32A-1-3(A) (1999) (stating that the purpose of the Children’s Code is to make the child’s health and safety “the paramount concern”); § 32A-2-20(D) (providing that, even where a child is sentenced as an adult, such a sentence may be “less than, but shall not exceed, the mandatory adult sentence”); State v. Javier M., 2001-NMSC-030, ¶¶ 25, 33, 39, 131 N.M. 1, 33 P.3d 1 (concluding that the legislature intended to provide children with greater constitutional protections during investigatory detention than that afforded to adults); In re Francesca L., 2000-NMCA-019, ¶¶ 8-9, 12-13, 128 N.M. 673, 997 P.2d 147 (affirming suppression of statements where it was unclear if juvenile had voluntarily waived rights, and noting that the legislature intended children to be treated differently and afforded more protection). Under our law, not all youthful offenders are sentenced as adults, but only those “not amenable to treatment or rehabilitation as a child in available facilities.” Section 32A-2-20(B)(l). Before requiring judges to make a decision of such consequence, we owe it to the court, to the victim, to the juvenile, and to society as a whole, to inform these decisions as much as practicable. Conditional sentencing, subject to later review, would make those decisions infinitely more informed than our present system.
¶13{55} Regrettably, I must concur in affirming Joel’s sentence, because existing constitutional authority gives me no choice. It ought to be different, and if it were in my power, I would elect to make it different. Suffice it to say that I concur with grave reservations about the lack of alternatives that make this sentence inevitable.